Phillips v. Colorado Civil Rights Commission: Will the Supreme Court Leave the First Amendment Intact? | Eastern North Carolina Now

    ANSWER: One view of the case, as some people see it, is that Jack Phillips discriminated against gay/lesbian couples and no one should be made to feel less than dignified. As Justice Kagan pointed out during oral arguments: "LGBT people have been humiliated, disrespected, and treated uncivilly." In this era where gays and lesbians are rapidly seeking equality rights, challenging Phillips' decision not to bake a custom cake for them on religious grounds would seem like another step forward in trying to establish total equality and in removing obstacles that might stand in the way. Religion, of course, always stands in the way of progressive and unnatural social change. Of course, what the couple refuses to acknowledge is that Jack had a religious foundation for that discrimination. And what the couple also refuses to acknowledge is that when Jack explained his position and politely referred them to another excellent baker, they chose to persecute him in court and in his business rather than show tolerance for his wish to honor his religion.

    The other view of the case is that the couple is intolerant of Christians. Rather than respect the dictates of his conscience (they are, after all, fully aware of the Biblical teachings on homosexuality), they chose to punish him for it. Unlike Phillips, they showed intolerance without any religious belief system (free exercise). They were simply motivated by the notion that they shouldn't have been discriminated against. (By the way, the couple filed their discrimination claim against Phillips even before Colorado recognized same-sex marriage, so the question is; What did he actually discriminate against, legally?). I'm not taking one side over the other in this post. I'm merely pointing out what both sides see. But I do notice, by the nature of some of the questions that I'm getting, that the right of conscience (perhaps the most important of our God-Given rights and the one most valued by our founding generations) is apparently the one most under-appreciated and the one most willing to surrender.

    QUESTION: Is it legitimate to compare the plight to overcome same-sex discrimination to the plight to overcome racial discrimination?

    ANSWER: Over-coming same-sex discrimination is not the same as the black Civil rights movement, and the conservative justices acknowledged that. Discrimination on the basis of a dark skin color is discrimination based on a stereotype that arose hundreds of years ago and was continued in this country through its years of slavery and into the Reconstruction era. The discrimination that continued into the Jim Crow era and into the Civil Rights era was the worst kind of discrimination because the malicious and demeaning treatment of persons of the African race was based no longer on the stereotype but rather on the color of their skin, a biological feature that they happened to be born with and were incapable of changing. It's like treating a midget like less of a dignified human being even though he or she had no control of the defect that resulted in the shorter statute. But the difference between the plight of African-Americans and homosexuals is that since the beginning of organized religion (5000 - 6000 years ago, going back to the laws handed down from God in the Old Testament), the God who created us has taught directly, through scripture, that only a man and a woman can marry and become joined as one. Anyone who has an unshakable and deep faith understands that he or she cannot cherry pick the laws handed down by God. One can't look at the Ten Commandments and conclude that God only really commands us not to kill. A woman can't accept the Commandment that says Thou Shalt Not Kill but then rationalize that it is OK to terminate the 4-month-old fetus growing inside her. For those who genuinely, deeply, unquestionably believe God handed down his laws and his rules in order to guide his people to a righteous life and to righteous communities, they believe lock, stock, and barrel in what God commanded through His prophets. And so, Justice Kennedy was genuine and reflective of the American people and the American experience when he wrote in Obergefell that belief in marriage as the union of husband and wife is held "in good faith by reasonable and sincere people here and throughout the world." But there has been no religious tenet that taught people here in the United States to hate and demean African-Americans. Society did that. Keeping old stereotypes alive did that. And so, the plight to over-come same-sex discrimination cannot be equated to the black Civil rights movement because there will always be those who, in good faith, and because of a sincere belief in religious doctrines, cannot accept same-sex marriages. It does not mean that they think any less of the individual, the homosexual or the lesbian, or don't believe they should be treated fairly and with dignity; it just means that when it comes to the institution of marriage (maybe even the term "marriage"), they have a deeply-held view as to which kind are truly legitimate.

    QUESTION: Why didn't Jack Phillips just bake the cake in order to spare his bakery and his fellow employees?

    ANSWER: Phillips explains: "It has nothing to do with David and Charlie, it has everything to do with my faith in Jesus Christ and my following the teachings of the Bible.... I have been asked if I honestly hold those convictions, which I do. I have been asked if my actions, my position, really reflect a Christian approach to life? In situations, I ask myself: 'What would Jesus do?' If Jesus were faced with the same situation, this was my answer: 'Jesus was a carpenter. I believe he wouldn't have made a bed for their wedding. He would have never condoned something that he was against. He wouldn't have acted in direct contradiction to the Bible's teachings while at the same time instructing others to follow those teachings. But I believe he would have been kind and loving to them just the same."

    QUESTION: Why didn't Craig and Mullins just go to a bakery that wants the business of the LGBT community?

    ANSWER: The answer should be that they shouldn't have to research to find a such a bakery. And again, they shouldn't have to suffer the indignation of being refused service. But two groups of individuals, the homosexual couple looking to celebrate their same-sex marriage and the Christian, looking to adhere to the religious tenets that bind him to his God and his religion, have competing interests and each has rights. As General Francisco, counsel for the United States, commented during oral arguments: "I agree that there are dignity interests at stake here, and I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too." And as Justice Kennedy said: "Tolerance is most meaningful when it's mutual." Neither tolerance nor respect was shown when it came to Jack Phillips' religious beliefs yet Phillips was expected to show tolerance for a same-sex wedding celebration that conflicts in a very real way with his religious beliefs, just because the same-sex couple happens to be mentioned in a statute and identified as a protected class of patrons.

    Mullins and Craig have endured the initial pain and humiliation of being turned away, of being discriminated against, while Phillips has lost most of his livelihood because of religious persecution. He lost 40% of his income by not being able to provide wedding cakes. As Craig explains: "I don't feel like we asked him for a piece of art," yet that is exactly what they asked for. Art doesn't necessarily take the form of a Rodin or a Michelangelo. A rainbow-layered cake with two men on top is an expressive work of cake art that conveys the specific message that they are celebrating their marriage not only as two men but also celebrating their pride in being gay.

    VIII. A DIFFERENT VIEW OF THE CASE

    Respected author and distinguished fellow with The Heritage Foundation, Ryan T. Anderson, believes this case should have never ended up at the Supreme Court. He believes that course could have easily been avoided. Of course, we can assume that the LGBT community and the LGBT lobby WANTED the case to be heard as a discrimination case.

    The question he asks is whether the Colorado Civil Rights Commission improperly, or recklessly, interpreted the law.

    In his article, "The Christian Baker Need Not Have Ended Up at the Supreme Court," Anderson asserts that not all disagreements over marriage are "discrimination" in the legal sense and require a legal remedy. He believes this to be an accurate statement based on, of all things, the Obergefell v. Hodges opinion.

    "Phillips argued that making him create a cake that celebrates a same-sex wedding would violate his First Amendment rights to free speech and free exercise of religion, by forcing him to express a message and to celebrate an event, that runs against his beliefs. If the Court agrees, it will bar Colorado and other states from applying antidiscrimination statutes in such a way.

    But Colorado should never have applied its statute this way to begin with. Indeed, states can avoid First Amendment showdowns by refusing to view support for traditional marriage as 'discrimination.'

    Part of the problem is that Colorado misunderstood the Supreme Court's ruling in favor of same-sex marriage in Obergefell v. Hodges (2015). Colorado claims that the Court held "opposition to same-sex marriage" to be "tantamount to discrimination on the basis of sexual orientation." In fact, as Chief Justice John Roberts pointed out during the Masterpiece oral arguments, the Court in Obergefell noted that belief in marriage as the union of husband and wife is held 'in good faith by reasonable and sincere people here and throughout the world.' The Court stated in its majority opinion that 'many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.'"

    Anderson argues that since the Supreme Court would not disparage well-meaning people who deem same-sex marriage to be wrong based on honorable religious and philosophical grounds, the state of Colorado (and the Colorado Civil Rights Commission) should not have either.

    Anderson continues:

    "Sexual-orientation antidiscrimination laws should serve as shields, not swords. They are meant to shield people from unjust discrimination that might prevent them from flourishing in society. They aren't supposed to be swords used to punish people for acting on their reasonable beliefs.

    You can see this when considering the history of Colorado's law. Within a two-year span, Colorado citizens voted to define marriage as the union of husband and wife and to ban discrimination based on sexual orientation. Many other states, too, simultaneously enacted sexual-orientation nondiscrimination policies while insisting that the traditional understanding of marriage is not discriminatory."

    Justice Samuel Alito pointed to this reality during oral arguments. As pointed out earlier, at the time that Jack Phillips declined to bake a same-sex wedding cake, Colorado wouldn't issue same-sex marriage licenses (let alone even recognize one already issued somewhere else. [Couldn't the state of Colorado itself have been guilty under the anti-discrimination statute of discrimination?] Let the situation that existed back in July 2012 in Colorado sink in...... A same-sex couple did not have the right to get married in Colorado or have a marriage issued elsewhere recognized in the state. And that's exactly what the reality was for Charlie Craig and David Mullins. Although residents of Colorado, they could not get married there so they went to Massachusetts. When they returned home to celebrate with family and friends, they were still unable to have their marriage recognized. Yet when they walked in the Masterpiece Cakeshop, all of a sudden, they expected that its owner, a resident and businessman in Colorado, should recognize their relationship as a marriage? How are state citizens expected to recognize a marriage that the State itself refuses to legally recognize? When Phillips, the baker said he would not bake a cake recognizing same-sex marriage, he may have done so based on his religious beliefs but he could have easily done so based on the law articulated in the state's constitution. But because he gave the first reason, Colorado condemned him for discrimination and the couple sued. Justice Alito found the situation hard to make sense of. As he commented: "So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated.... And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, 'No, I won't do it,' in part because same-sex marriage was not allowed in Colorado at the time, he's created a grave wrong. How does that all that fit together?"

    Colorado didn't have to declare Phillips to be guilty of discrimination and should not have done so.

    Anderson explains:

    "We apply other anti-discrimination statutes in a more fair and nuanced way. Bans on religion-based discrimination are not used to force secular organizations to violate their beliefs. Religious antidiscrimination policies have not been used, for example, to force Planned Parenthood to hire pro-life Catholics. And the state of Colorado said it wasn't religious discrimination when three different bakeries refused to bake cakes with religious anti-gay messages. Religion antidiscrimination laws simply do not seek to impose religious orthodoxy on the country.

    But sexual orientation and gender identity (SOGI) antidiscrimination policies are used to impose sexual orthodoxy (conformity). They're used to try to force Catholic schools to employ people who undermine their sexual values and to coerce Evangelical bakers to lend their artistic talents to messages about marriage with which they disagree. SOGI laws are used to punish people of good will who simply seek the freedom to lead their lives in accordance with their beliefs about human sexuality."

    During oral arguments, swing-Justice Anthony Kennedy appeared to reject the ACLU's key argument that "opposition to same-sex marriage is discrimination against people who identify as gay." He understood Phillips' position. He understood that Phillips genuinely has no animus against gay people; He just doesn't believe they can be united in marriage because of the core tenets of his faith. "It's not their identity," Kennedy explained to his fellow justices. "It's what they're doing."

    "United States has reached compromises on similarly difficult moral and cultural issues before. Following Roe v. Wade, Americans refused to use sex antidiscrimination law as a sword to punish pro-lifers. In 1993, in Bray v. Alexandria Women's Health Clinic, the Supreme Court resolutely rejected the argument that pro-lifers are inherently discriminatory: 'Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women."

    The same is true when it comes to marriage as the union of husband and wife: There are common and respectable reasons for supporting it that have nothing to do with hatred or condescension. But this is not true when it comes to opposition to interracial marriage - and this is where the analogies to racism break down. When the Supreme Court struck down bans on interracial marriage, it did NOT say that opposition to interracial marriage was based on 'decent and honorable premises' and held 'in good faith by reasonable and sincere people here and throughout the world.' It did not say it, because it could not say it.

    Opposition to interracial marriage is discrimination based on the identity of the individual, on the immutable characteristic of race and skin color. It was intellectual and judicial dishonesty to agree with the petitioners (gay couple, Jim Obergefell and John Arthur, and other same-sex couples) in the Obergefell case that their plight for marriage equality was akin to those seeking the right to marry as an inter-racial couple.

    "Opposition to interracial marriage developed as one aspect of a larger system of racism and white supremacy, as part of an effort to hold a race of people in a condition of economic and political inferiority and servitude. It was based on the idea that contact with African Americans on an equal plane is wrong.

    That idea, and its premise of the supposed inferiority of African Americans, is the essence of bigotry. Bakers who declined to bake cakes for interracial weddings also declined to treat African Americans equally in a host of circumstances. Racists did not simply object to interracial marriage; they objected to contact with African Americans on an equal footing.

    By contrast, marriage as the union of husband and wife has been a universal human practice until just recently, regardless of views about sexual orientation. This vision of marriage is based on the capacity that a man and a woman possess to unite as one-flesh, create new life, and unite that new life with both a mother and a father. Whether ultimately sound or not, this view of marriage is reasonable, based on decent and honorable premises, and disparaging of no one.

    A lack of disparagement also explains why bakers like Jack Phillips have been serving gay customers faithfully for years.